El derecho a la imagen íntima y el Código penal La calificación de los casos de elaboración y difusión del deepfake sexual

Abstract

The first part of this paper aims to update the concept of "intimate image" protected in art. 197.1 of the Spanish Criminal Code, taking into account the use of techniques that allow its simulation with artificial intelligence, to conclude that said article only protects the intimate image that represents the truth, and not the one that is crafted with artificial intelligence. The second part of the paper analyzes the legal classification of the cases of elaboration and dissemination of sexual deepfakes, beginning with the existence of a possible crime of injuries. Other legally protected interests may also be injured, leading to further crimes: against psychic health, against liberty (threats or coercive harassment of art. 172 ter. 5 of the Spanish Criminal Code) or, more complexly, child pornography offences. Finally, the difficulty of including sexual deepfakes within the crime against moral integrity of art. 173.1 of the Spanish Criminal Code it is also described